Brooks v. New Hampshire Supreme Court

April 15, 1996 UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 95-2129

TROY E. BROOKS,
Plaintiff, Appellant,

v.

NEW HAMPSHIRE SUPREME COURT, ET AL.,
Defendants, Appellees

ERRATA SHEET
ERRATA SHEET

The opinion of the court issued on April 8, 1996, is
corrected as follows:

Replace footnote 4, page 6, to read in its entirety as
follows:

Although several courts have applied an abuse of
discretion standard in reviewing Younger abstention

cases, see, e.g., Martin Marietta Corp. v. Maryland

Human Relations Comm'n, 38 F.3d 1392, 1396 (4th Cir.

1994); O'Neil v. City of Philadelphia, 32 F.3d 785, 790

(3d Cir. 1994), cert. denied, 115 S. Ct. 1355 (1995);

Ramos v. Lamm, 639 F.2d 559, 564 n.4 (10th Cir. 1980),

cert. denied, 450 U.S. 1041 (1981), context is the

determining factor. Where an attempt is made to apply
the Younger doctrine under oddly configured

circumstances, in a way that threatens the legitimate
interests of the national government, then the federal
court may exercise a modicum of discretion, and
appellate review is for abuse of that discretion. See

Chaulk Servs., Inc. v. MCAD, 70 F.3d 1361, 1368 (1st

Cir. 1995). But for purposes of what the Chaulk

majority called the "customary case" of which the
case at bar is a prototype the Supreme Court has
spoken peremptorily, see Colorado River, 424 U.S. at

816 n.22, and intermediate appellate courts are,
therefore, spinning wheels by probing for abuse of a
discretion that does not exist. Nonetheless, the
district court's findings of fact, in contradistinction
to its ultimate legal conclusion as to the
applicability vel non of the Younger doctrine, may

evoke a more deferential standard of review.

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 95-2129

TROY E. BROOKS,

Plaintiff, Appellant,

v.

NEW HAMPSHIRE SUPREME COURT, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

Before

Selya, Circuit Judge,

Campbell, Senior Circuit Judge,

and Stahl, Circuit Judge.

Philip T. Cobbin for appellant.

Stephen J. Judge, Senior Assistant Attorney General, with

whom Jeffrey R. Howard, Attorney General, was on brief, for

appellees.

April 8, 1996

SELYA, Circuit Judge. Balancing responsibility between
SELYA, Circuit Judge.

federal and state governments in a republic that assigns

interlocking sovereignty to each often requires federal courts to

walk an unsteady tightrope. From a federal court's perspective,

this special sort of judicial funambulism always must proceed in

the spirit of cooperative federalism tempered, however, by the

need to avoid the pitfalls inherent in blind deference to state

autonomy.

The case at hand implicates the division of

responsibilities between federal and state judicial systems but

does not require us to walk a very high wire. We need only tread

on solid ground, previously paved by the United States Supreme

Court, and apply the Court's teachings to the peculiar factual

and legal terrain that underlies this appeal. Because that

exercise persuades us that the district court performed its task

in step with the principles enunciated by the Court, we affirm

the order from which the plaintiff appeals.

I. BACKGROUND
I. BACKGROUND

We supply a thumbnail sketch of the relevant facts. In

1992, plaintiff-appellant Troy E. Brooks and Erica Bodwell, a

member of the New Hampshire bar, engaged in an intimate

relationship during a period when Bodwell was separated from her

husband. Bodwell became pregnant. She obtained a divorce in

late 1992, but the final decree made no provision for her unborn

child.

Bodwell gave birth to a son in February of 1993 and

3

subsequently initiated a paternity suit against Brooks in which

she maintained that he was the boy's biological father. Brooks

acknowledged paternity and the court entered a provisional order

covering matters such as support, custody, and visitation.

Shortly thereafter, Bodwell reconciled with her ex-

husband, moved to discontinue the paternity action, and, relying

on the fact that the child was conceived while she was still

married, sought refuge in the presumption of legitimacy. Brooks

objected to the proposed dismissal of the paternity suit and set

out to confirm his legal status as the boy's father. After

numerous skirmishes concerning paternity (not relevant here),

Brooks filed complaints with the New Hampshire Supreme Court

Professional Conduct Committee (the Committee) against three

attorneys, including Erica Bodwell, accusing them of flouting

various ethical canons in their handling of the paternity suit.

The Committee dismissed the complaints after conducting an

investigation.

Brooks then sought to put to use in the paternity suit

both the fact that a disciplinary complaint had been instituted

against Erica Bodwell and certain evidence to which he became

privy during the course of the Committee's investigation. His

efforts were thwarted by a rule prohibiting the disclosure of

knowledge obtained during the course of attorney disciplinary

proceedings. See N.H. Sup. Ct. R. 37(17)(a) (1984).1 Brooks

1The rule in effect at the time, with exceptions not
relevant here, provided that all records and proceedings
involving allegations of attorney misconduct "shall be

4

retorted by filing a pro se petition in the New Hampshire Supreme

Court (the NHSC) in which he contended that Rule 37(17)(a)

abridged his First Amendment right to free speech and asked that

the rule be invalidated.

On March 23, 1995, the NHSC agreed to entertain Brooks'

petition. The court scheduled briefing and oral argument (with

the proviso that all matters connected with the proceeding remain

confidential). Brooks then retained counsel, Philip Cobbin, who

filed a brief on his behalf. The court accepted the case on a

paper record once Brooks and his attorney refused to participate

in oral arguments behind closed doors. The case has yet to be

decided.

After the matter had been taken under advisement,

Brooks, acting as his own attorney, sued the members of the NHSC

and of the Committee (and others, for good measure, including the

state bar association) in New Hampshire's federal district court.

His complaint sought declaratory and injunctive relief aimed at

halting the enforcement of Rule 37(17)(a). In what amounted to

anticipatory disregard of that rule, he attached a copy of the

NHSC's order (agreeing to entertain his petition, but only in

camera) to his federal court complaint. Attorney Cobbin

subsequently entered an appearance for Brooks in the federal

confidential and shall not be disclosed." N.H. Sup. Ct. R.
37(17)(a). The same rule also provided that "participants in the
proceedings shall conduct themselves so as to maintain the
confidentiality mandated by this rule," and warned that
"[v]iolation of this duty shall constitute an act of contempt of
the supreme court." N.H. Sup. Ct. R. 37 (17)(g).

5

court and moved for a preliminary injunction designed (a) to

freeze the paternity suit until the federal court had ruled on

Brooks' constitutional claim, (b) to force the NHSC to dismiss

Brooks' petition without prejudice, and (c) to prevent that court

from exercising its contempt powers under Rule 37(17)(g) against

Brooks. Without requesting the district court to seal the

record, Attorney Cobbin included in the motion a copy of a brief

filed in the confidential proceeding. Not surprisingly, the NHSC

promptly directed the Committee to determine whether the lawyer

had violated Rule 37(17)(a).

The district court refused to issue a preliminary

injunction. The court reasoned that the proceeding pending in

the NHSC called into play the doctrine of Younger v. Harris, 401

U.S. 37 (1971); that Brooks' claim implicated an important state

interest, namely, the administration of the attorney disciplinary

system; that Brooks could obtain a full and fair hearing on his

federal constitutional claim before the state tribunal; and that,

therefore, the Younger doctrine disabled the district court from

granting the requested relief. This appeal ensued.2

II. STANDARD OF REVIEW
II. STANDARD OF REVIEW

Technically, this is an appeal from the denial of a

2Following oral argument on this appeal, the NHSC
substantially revised Rule 37(17). See N.H. Sup. Ct., Order of

March 7, 1996 & appendices. The amendments take some steps
toward meeting Brooks' objections by relaxing the confidentiality
restrictions applicable to attorney disciplinary proceedings.
But because the amendments are without retroactive effect the
Order specifically provides that the amendments shall be
effective as to complaints filed on or after March 7, 1996 they
have no significant impact on this appeal.

6

preliminary injunction,3 and therefore the lower court's

decision assuming that it applied the appropriate legal

standard ordinarily must stand unless the appellant

demonstrates an abuse of discretion. See, e.g., Weaver v.

Henderson, 984 F.2d 11, 12-13 (1st Cir. 1993). If Younger

applies, however, abstention is mandatory, see Colorado River

Water Conserv. Dist. v. United States, 424 U.S. 800, 816 n.22

(1976); Trust & Investment Advisers, Inc. v. Hogsett, 43 F.3d

290, 293-94 (7th Cir. 1994); Fresh Int'l Corp. v. Agricultural

Labor Relations Bd., 805 F.2d 1353, 1356 n.2 (9th Cir. 1986), and

we must review de novo the essentially legal determination of

whether the requirements for abstention have been met. See,

e.g., Trust & Investment Advisers, 43 F.3d at 294; Kenneally v.

Lungren, 967 F.2d 329, 331 (9th Cir. 1992), cert. denied, 506

U.S. 1054 (1993); Traughber v. Beauchane, 760 F.2d 673, 675-76

(6th Cir. 1985).4 That standard supervenes the abuse of

3Despite Brooks' importuning, we have no appellate
jurisdiction over the district court's denial of the flurry of
temporary restraining orders that he sought prior to the district
court's disposition of his motion for a preliminary injunction.
See United States v. Miller, 14 F.3d 761, 764 (2d Cir. 1994);

Massachusetts Air Pollution & Noise Abatement Comm'n v. Brinegar,

499 F.2d 125, 125 (1st Cir. 1974).

4 Although several courts have applied an abuse of
discretion standard in reviewing Younger abstention

cases, see, e.g., Martin Marietta Corp. v. Maryland

Human Relations Comm'n, 38 F.3d 1392, 1396 (4th Cir.

1994); O'Neil v. City of Philadelphia, 32 F.3d 785, 790

(3d Cir. 1994), cert. denied, 115 S. Ct. 1355 (1995);

Ramos v. Lamm, 639 F.2d 559, 564 n.4 (10th Cir. 1980),

cert. denied, 450 U.S. 1041 (1981), context is the

determining factor. Where an attempt is made to apply
the Younger doctrine under oddly configured

circumstances, in a way that threatens the legitimate

7

discretion inquiry, and applies foursquare even though we are

reviewing the district court's denial of injunctive relief. See

Fieger v. Thomas, 74 F.3d 740, 743 (6th Cir. 1996) (exercising de

novo review in kindred circumstances); Goldie's Bookstore, Inc.

v. Superior Court, 739 F.2d 466, 468 (9th Cir. 1984) (similar).

This usurpation of the customary standard of review

does not create an awkward anomaly. The primary integer in the

preliminary injunction calculus is the plaintiff's probability of

success on the merits. See, e.g., Narragansett Indian Tribe v.

Guilbert, 934 F.2d 4, 5 (1st Cir. 1991).5 This means, of

course, that the plaintiff must show a likelihood of succeeding

in the pending proceeding. When Younger applies, the district

court must refrain from reaching the merits of the plaintiff's

claims and, thus, there is no real possibility let alone a

interests of the national government, then the federal
court may exercise a modicum of discretion, and
appellate review is for abuse of that discretion. See

Chaulk Servs., Inc. v. MCAD, 70 F.3d 1361, 1368 (1st

Cir. 1995). But for purposes of what the Chaulk

majority called the "customary case" of which the
case at bar is a prototype the Supreme Court has
spoken peremptorily, see Colorado River, 424 U.S. at

816 n.22, and intermediate appellate courts are,
therefore, spinning wheels by probing for abuse of a
discretion that does not exist. Nonetheless, the
district court's findings of fact, in contradistinction
to its ultimate legal conclusion as to the
applicability vel non of the Younger doctrine, may

evoke a more deferential standard of review.

5The other integers in the calculus include (1) the
likelihood of irreparable injury in the absence of a preliminary
injunction, (2) the relative balance of hardships if the order is
issued or denied, and (3) the effect on the public interest of
granting or withholding interim injunctive relief. See

Narragansett Indian Tribe, 934 F.2d at 5.

8

likelihood that the plaintiff will succeed in his action. A

fortiori, there can be no abuse of discretion in refusing to

grant preliminary injunctive relief.

III. ANALYSIS
III. ANALYSIS

Against this backdrop, we turn to a consideration of

whether Younger abstention is appropriate in this case. Our

analysis unfolds in four layers.

A.
A.

The Younger doctrine welds principles of federalism and

comity into a fulcrum that can then be used to achieve a proper

balance between sensitive federal and state interests. See

Younger, 401 U.S. at 44. Based on these principles, the Younger

Court articulated the federal judiciary's obligation to refrain

from adjudicating the merits of federal claims where to do so

would needlessly inject federal courts into ongoing state

criminal prosecutions. See id. Doctrinal evolution over the

next quarter-century brought other types of ongoing state

proceedings, including civil actions and administrative

adjudications, within the ambit of Younger abstention. See,

e.g., New Orleans Public Serv., Inc. v. Council of City of New

Orleans, 491 U.S. 350, 367-68 (1989); Ohio Civil Rights Comm'n v.

Dayton Christian Sch., Inc., 477 U.S. 619, 627 (1986).

Perhaps the most revealing elucidation of the balance

that the Younger Court wished to achieve is found in Middlesex

County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423

(1982). There the New Jersey Ethics Committee instituted a

9

disciplinary proceeding against a defense lawyer who, during a

criminal trial, had made statements vilifying the judicial

system. See id. at 428. The lawyer sued in federal court to

block the disciplinary proceeding on the ground that the

standards of professional conduct relied upon by the committee

abridged his First Amendment rights. The district court

abstained, concluding that the lawyer could raise his claims in

the disciplinary proceeding and on subsequent judicial review.

The Third Circuit reversed on the basis that a bar disciplinary

proceeding did not provide a suitable forum for the adjudication

of the lawyer's constitutional claims. 643 F.2d 119.

The Supreme Court reinstated the district court's

ruling. 457 U.S. at 437. In the process the Court established

the basic analytical framework that still governs Younger

abstention. Under this paradigm, a federal court must abstain

from reaching the merits of a case over which it has jurisdiction

so long as there is (1) an ongoing state judicial proceeding,

instituted prior to the federal proceeding (or, at least,

instituted prior to any substantial progress in the federal

proceeding), that (2) implicates an important state interest, and

(3) provides an adequate opportunity for the plaintiff to raise

the claims advanced in his federal lawsuit. See id. at 432.

B.
B.

The next step in the pavane requires us to apply this

tripartite framework to the case at bar.

1. Two of the three proceedings that Brooks seeks to
1.

10

enjoin his petition questioning the constitutionality of Rule

37(17)(a) and the paternity suit in which he is embroiled are

pending before duly constituted state courts and are undeniably

ongoing state judicial proceedings. See New Orleans Public

Serv., 491 U.S. at 371 (listing rudiments of a judicial inquiry).

The third proceeding the embryonic contempt proceeding against

Cobbin (which Brooks, in all events, may lack standing to

contest) is also judicial in nature. Middlesex itself involved

a First Amendment challenge to a state's system of attorney

discipline, and the Supreme Court held that attorney disciplinary

proceedings are judicial proceedings for purposes of Younger

abstention. See Middlesex, 457 U.S. at 433-34. Consequently,

the first prerequisite for Younger abstention is satisfied.

2. It is evident that New Hampshire has a vital
2.

interest in regulating the subject matter of Brooks' claims. A

state's judicial system is an important cog in its governmental

apparatus, and no judicial system can function smoothly unless

the attorneys who participate in it are held to high standards of

professionalism and accountability. See id. at 434-35. Thus,

regulating attorney conduct comprises a significant state

interest for purposes of Younger abstention.6 See id.; see also

6The defendants represent the state's interest. By way of
illustration, the NHSC is charged with the paramount
responsibility of establishing procedures and standards governing
attorney discipline "that are emblematic of the character of the
profession." Petition of Burling, 651 A.2d 940, 944 (N.H. 1994);

see also N.H. Const., pt. II, art. 73-a. To achieve that mission

the court relies upon the Committee to investigate and determine
the propriety of attorneys' conduct. See N.H. Sup. Ct. R.

37(3)(c); see also Burling, 651 A.2d at 941-42.

11

Fieger, 74 F.3d at 745; Hirsh v. Justices of Calif. Supreme

Court, 67 F.3d 708, 712-13 (9th Cir. 1995).

In the same vein, the confidentiality rule comprises a

central element of the regulatory scheme. The NHSC has

identified no fewer than four noteworthy purposes that the rule

serves: (1) protecting attorneys' reputations; (2) protecting

complainants' anonymity; (3) maintaining the integrity of pending

investigations; and (4) preventing profligate disclosures that

might endanger the interests of those sources from whom the state

obtained information on a confidential basis. See State v.

Merski, 437 A.2d 710, 715 (N.H. 1981), cert. denied, 455 U.S. 943

(1982). Since the rule's proper operation is itself of great

moment to New Hampshire citizens, the second requirement for

Younger abstention is satisfied.7

3. We also believe that the pending state proceedings
3.

allow an ample opportunity for Brooks to raise his constitutional

challenge. The clearest illustration of this point is the

proceeding presently pending before the NHSC (in which the very

issue that forms the centerpiece of Brooks' federal complaint is

raised, briefed, and teetering on the brink of decision). Any

other assessment would defile the basic presumption that state

courts are fully capable of safeguarding federal constitutional

rights. See Middlesex, 457 U.S. at 431; Bettencourt v. Board of

7Although the NHSC recently amended the version of the
confidentiality rule that is at issue here, see supra note 2, the

state nevertheless retains a strong interest in preserving the
expectations of confidentiality created by the former regime.

12

Registration in Medicine, 904 F.2d 772, 776 (1st Cir. 1990).

Here, the presumption is reinforced because the NHSC

has demonstrated unequivocally that it takes questions anent the

confidentiality provisions seriously. See, e.g., Petition of

Burling, 651 A.2d 940 (N.H. 1994). Indeed, when Brooks

interposed his objections to the confidentiality rule, the NHSC

which could have brushed aside his petition as a matter of

discretion elected to entertain the objections, and did so in a

proceeding that affords Brooks an adequate opportunity to present

his constitutional arguments.

Though Brooks maintains that the NHSC proceeding is

less than adequate because of its confidential character, the

Supreme Court has never suggested that having an adequate

opportunity to present a federal claim requires the parallel

state proceeding be open to the public. Rather, the test is

whether "state law clearly bars the interposition of the

constitutional claims." Moore v. Sims, 442 U.S. 415, 425-26

(1979). Nothing in the confidential nature of the state court

proceeding constitutes such a bar.8 The third (and final)

requirement for Younger abstention is therefore satisfied.

C.
C.

Fulfillment of the three requirements for Younger

abstention usually ends the federal inquiry. See Bettencourt,

8For what it may be worth, we note that, if the NHSC follows
past practice, its eventual disposition of Brooks' petition will
be embodied in a published, publicly accessible opinion. See,

e.g., Petition of Burling, 651 A.2d 940 (N.H. 1994); Astles'

Case, 594 A.2d 167 (N.H. 1991).

13

904 F.2d at 779-80. But even if the Younger requirements are

satisfied, a federal court may nonetheless intervene to halt an

ongoing state judicial proceeding if the plaintiff demonstrates

"bad faith, harassment, or any other unusual circumstance."

Younger, 401 U.S. at 54. Brooks suggests that his case trips the

exception. He bases this suggestion broadly, but the only point

that bears extended discussion is his allegation that the state

tribunal is incompetent by reason of bias.

Judicial bias is a recognized basis for derailing

Younger abstention, see, e.g., Gibson v. Berryhill, 411 U.S. 564,

577-79 (1973), but the claim requires more than the frenzied

brandishing of a cardboard sword. Brooks' claim is pasted

together from various bits and pieces of marginally relevant

information. For example, he notes that several Justices of the

NHSC have advocated confidential treatment of judicial

disciplinary proceedings; that certain Justices have testified

before legislative committees in opposition to restrictions on

the Chief Justice's rulemaking power; that the NHSC will only

hear oral argument on his petition behind closed doors; and that

in the state court proceeding the Committee has staunchly

defended the validity of the confidentiality rule. We think that

such snippets, individually and collectively, are insufficient to

show cognizable bias.

In the first place, the bias exception to the Younger

abstention doctrine is inapposite if an ostensibly aggrieved

party fails to employ available procedures for recusal of

14

allegedly biased judges. See Middlesex, 457 U.S. at 435;

Bettencourt, 904 F.2d at 780; Standard Alaska Prod. Co. v.

Schaible, 874 F.2d 624, 629 (9th Cir. 1989), cert. denied, 495

U.S. 904 (1990). Brooks has never sought the recusal of any

individual Justice. While he attempts to justify this omission

on the basis of various tactical considerations and by claiming

that the NHSC's standard recusal mechanism is inapplicable to

proceedings that fall within its original jurisdiction, his

explanations lack force. For this reason alone, his claim must

fail.

In the second place, the baseline showing of bias

necessary to trigger Younger's escape mechanism requires the

plaintiff to offer some evidence that abstention will jeopardize

his due process right to an impartial adjudication. See Gibson,

411 U.S. at 577; Bettencourt, 904 F.2d at 780. The "evidence"

that Brooks presents does not approach this benchmark. At most,

Brooks' claim depends on a purely conclusory allegation that the

Justices of the NHSC are predisposed to uphold their own policies

and rules. But an entire group of adjudicators cannot be

disqualified wholesale solely on the basis of an alleged

institutional bias in favor of a rule or policy promulgated by

that group. See, e.g., Doolin Security Savs. Bank v. FDIC, 53

F.3d 1395, 1407 (4th Cir.), cert. denied, 116 S. Ct. 473 (1995);

Hammond v. Baldwin, 866 F.2d 172, 177 (6th Cir. 1989).

To implicate due process, claims of general

institutional bias must be harnessed to a further showing, see

15

Gibson, 411 U.S. at 579, such as a potential conflict of

interest, see, e.g., Ward v. Village of Monroeville, 409 U.S. 56,

60 (1972), or a pecuniary stake in the outcome of the litigation,

see, e.g., Bettencourt, 904 F.2d at 780 n.10. For aught that

appears, the Justices' interest (if any) in maintaining the

privacy of attorney disciplinary proceedings appears to be purely

Platonic.9 At least, Brooks has not produced any evidence that

the NHSC or any individual Justice stands to gain or lose

depending on whether attorney disciplinary proceedings are

conducted in public or private, nor has he revealed the existence

of any particularized interest in the outcome of his litigation

that might tend to undermine the Justices' impartiality.

In the third place, to the extent that Brooks contends

that any individual Justice is actually biased or has prejudged

his case, he offers no concrete evidence to that effect. Thus,

he bumps up against the historic presumption that judges are "men

[and women] of conscience and intellectual discipline, capable of

judging a particular controversy fairly on the basis of its own

circumstances." Withrow v. Larkin, 421 U.S. 35, 55 (1975)

(internal quotation marks and citation omitted). The presumption

of judicial impartiality cannot be trumped by free-floating

invective, unanchored to specific facts. See Kenneally, 967 F.2d

at 333; Bettencourt, 904 F.2d at 780 n.10.

9The structural bias claims, weak in all events, are further
undermined by the recent amendments to the confidentiality rule.
See supra note 2. Those amendments, adopted without dissent by

the Justices, liberalize the rule in such a way as to provide a
strong indication that the Justices are not wed to secrecy.

16

D.
D.

We add brief comments concerning two other claims that

Brooks seems to make.

1. To the extent that Brooks invites us to forgo
1.

Younger abstention because his attorney is the subject of a bad-

faith prosecution by the NHSC (arising out of disclosures made in

violation of Rule 37(17)(a) whilst representing Brooks), we

decline the invitation. The NHSC's investigation of Cobbin is

not an enforcement proceeding brought without any realistic

expectation of finding a violation of a rule; and, therefore, the

investigation does not catalyze the bad-faith exception to the

Younger doctrine. See Younger, 401 U.S. at 48; Fieger, 74 F.3d

at 750; see also Dombrowski v. Pfister, 380 U.S. 479, 482 (1965).

2. In something of a non sequitur, Brooks, citing
2.

Younger, claims that the threat of disciplinary proceedings

against him and his attorney for violations of the

confidentiality rule chills the exercise of his First Amendment

rights, and that the confidentiality rule is therefore

"flagrantly and patently violative of express constitutional

prohibitions in every clause, sentence and paragraph, and in

whatever manner and against whomever an effort might be made to

apply it." Younger, 401 U.S. at 53-54 (quoting Watson v. Buck,

313 U.S. 387, 402 (1941)). But Younger itself belies this claim.

The Younger Court declared that "a `chilling effect,' even in the

area of First Amendment rights, has never been considered a

sufficient basis, in and of itself, for prohibiting state

17

action." Id. at 51; accord Fieger, 74 F.3d at 750. Here, Brooks

has posited no other legally tenable basis for his challenge.

IV. CONCLUSION
IV. CONCLUSION

We need go no further. Although Brooks raises an

important question about the interplay between New Hampshire's

attorney disciplinary system and the First Amendment, that

question is presently pending before the New Hampshire Supreme

Court in a judicial proceeding that Brooks himself instituted.

If, in the end, Brooks is not content with the result of that

adjudication, he may then seek certiorari in the Supreme Court of

the United States. He may not, however, rewardingly request the

federal district court to enjoin the state proceedings.

Affirmed.
Affirmed.

18